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Articles 1 - 30 of 30
Full-Text Articles in Law
In Memoriam: Justice Robert O. Staniforth, Valerie Leman
In Memoriam: Justice Robert O. Staniforth, Valerie Leman
San Diego Law Review
This is a dedication to Justice Robert O. Staniforth, who served as a justice of the Court of Appeal, Fourth District, Division One, for a decade. Even in retirement Justice Staniforth accepted numerous assignments to superior courts and courts of appeal, as well as private judging. He was most recently before his death a professor at the University of San Diego School of Law. This Article serves as a dedication to Justice Staniforth, and summarizes his achievements in the legal profession as well as his profound effect on people around him.
A Neglected Policy Option: Indemnification Of Directors For Amounts Paid To Settle Derivative Suits - Looking Past "Circularity" To Context And Reform, Mae Kuykendall
San Diego Law Review
This Article explores and analyzes the rationale both for and against allowing corporations to indemnify directors for amounts directors pay to settle derivative litigation. The author presents the case for permitting boards to settle cases by allowing a director to acknowledge liability, pay a sum of money to the corporation and receive its prompt return from the corporation. She argues that notwithstanding risks, indemnification of directors in derivative suits is not patently worse that current termination options. It yields more cheaply the same corporate recovery as a court dismissal.
Will California's "One Strike" Law Stop Sexual Predators, Or Is A Civil Commitment System Needed?, Peter A. Zamoyski
Will California's "One Strike" Law Stop Sexual Predators, Or Is A Civil Commitment System Needed?, Peter A. Zamoyski
San Diego Law Review
This Comment urges California and other jurisdictions to enact sexual predator laws to civilly commit dangerous, mentally ill sex offenders who are nearing release from prison and are a credible threat to re-offend. The author propounds a Model Sexual Predators Act, which is argued to be narrowly tailored to achieve the state goal, as required by the Constitution. The author also argues that this Model Act surmounts substantive and procedural due process concerns, increases the safety of the public, and safeguards the accused individual's interest in liberty.
Erisa: Reformulating The Federal Common Law For Plan Interpretation, George Lee Flint
Erisa: Reformulating The Federal Common Law For Plan Interpretation, George Lee Flint
San Diego Law Review
This Article develops a standard by which to judge the correctness of the ERISA federal common law rules. That standard requires the protection of participants' reasonable expectations. Using the plan interpretation rule as an example, this Article shows that the present court rules fail this "reasonable expectation" standard. This Article develops the proper plan interpretation rule as a rule that fosters the policies of ERISA, uses a lay understanding principle, allows extrinsic evidence to determine that understanding as well as resolve ambiguities, and employs a default principle of construing the plan in favor of participants.
Owning Our Bodies: An Examination Of Property Law And Biotechnology, Richard Gold
Owning Our Bodies: An Examination Of Property Law And Biotechnology, Richard Gold
San Diego Law Review
This Article examines whether property law provides an appropriate forum for determining who should have rights in human biological materials. Property law is discussed and examined with reference to the complex and diverse ways that American society values human biological materials. The author argues that property law allocates goods according to market values. Because certain values, such as dignity and autonomy, cannot readily be translatable into market values, this Article concludes that property law is not sufficient to deal with the non-market aspects of human biological materials.
California's Three Strikes Law - Should A Juvenile Adjudication Be A Ball Or A Strike?, Lise Forquer
California's Three Strikes Law - Should A Juvenile Adjudication Be A Ball Or A Strike?, Lise Forquer
San Diego Law Review
This Comment discusses California's Three Strikes sentencing law as it applies to non-jury trial juvenile adjudications. It analyzes the due process and equal protection issues raised by Three Strikes' use of juvenile adjudications as strikes under California law. The author concludes that the classification of these adjudications as strikes will probably withstand a due process challenge. The author recognizes, however, that some equal protection claims may be meritorious. The author concludes by recommending several amendments to the Three Strikes provisions, which would eliminate equal protection challenges.
The Case For Limited Enforceability Of A Pre-Petition Waiver Of The Automatic Stay, Rafael Efrat
The Case For Limited Enforceability Of A Pre-Petition Waiver Of The Automatic Stay, Rafael Efrat
San Diego Law Review
This Article explores whether a pre-petition waiver of the automatic stay in a bankruptcy proceeding is enforceable. Courts that analyze the enforceability of such waivers address the question of whether a debtor and its creditors should be allowed to opt out of this provision of the Bankruptcy Code. Based on conflict within the bankruptcy courts, the author explores the rationale for such conflict among the courts. He then proposes an approach for resolving this conflict consistent with the various statutory and public policy considerations. He concludes that courts should enforce pre-petition waivers of the automatic stay under limited circumstances.
Patentability Of Pioneering Pharmaceuticals: What's The Use?, Timothy R. Howe
Patentability Of Pioneering Pharmaceuticals: What's The Use?, Timothy R. Howe
San Diego Law Review
This Comment explores the manner in which the Patent and Trademark Office applies the patentable utility requirement to pharmaceutical inventions and illustrates the difficulties biotechnology companies face in attempting to fulfill this requirement . After exploring potential explanations for and alternative to the requirement, this Comment will conclude that, as currently applied, the utility requirement is inconsistent with our patent law and contrary to the policy objectives underlying our patent system.
Women Refugees: Forgotten No Longer?, Deborah A. Anker
Women Refugees: Forgotten No Longer?, Deborah A. Anker
San Diego Law Review
This Article consists of three parts: The author's observations about the historical neglect of the special problems facing women refugees in obtaining political asylum; an extract for the Report on the Situation of Human Rights in Haiti, issued by the Inter-American Commission on Human Rights of the Organization of American States in February, 1995, a report made in response to calls for action by this author and others; and the Memorandum on Consideration For Asylum Officers Adjudicating Asylum Claims From Women, issued by the Immigration and Naturalization Service in May, 1995, again in response to the efforts of this author …
The Employee/Independent Contractor Classification: Do Loan Officers Working With California Mortgage Brokers Qualify As Statutory Independent Contractors?, Bradford D. Duea
The Employee/Independent Contractor Classification: Do Loan Officers Working With California Mortgage Brokers Qualify As Statutory Independent Contractors?, Bradford D. Duea
San Diego Law Review
In ascertaining federal employment tax liabilities, companies must determine whether the individuals they work with are employees or independent contractors. In this process, companies apply a common law test, and some can apply Internal Revenue Code section 3508. Section 3508 qualifies real estate agents and direct sellers as statutory independent contractors. This Comment addresses whether loan officers working with California mortgage brokers satisfy the elements of Internal Revenue Code 3508 and fall within the definition of "real estate agent."
Forced Abortions And Involuntary Sterlization In China: Are The Victims Of Coercive Population Control Measures Eligible For Asylum In The United States, Thomas A. Brown Ii
Forced Abortions And Involuntary Sterlization In China: Are The Victims Of Coercive Population Control Measures Eligible For Asylum In The United States, Thomas A. Brown Ii
San Diego Law Review
This article discusses the propriety of granting political control policy. It argues that China is persecuting some of its citizens through its population control policy and that the United States should grant asylum to those who have been persecuted or who have a genuine fear of future persecution.
The End Of Innocence: The Effect Of California's Recreational Use Statue On Children At Play, Kathryn D. Horning
The End Of Innocence: The Effect Of California's Recreational Use Statue On Children At Play, Kathryn D. Horning
San Diego Law Review
One hundred years ago, the idea that children deserved special protection from dangerous conditions found on private property was adopted by both the United States and California Supreme Courts. Due to innocence of children and their inability to perceive possible dangers, landowners were required to provide a higher degree of protection to children than adults. This new and revolutionary idea, later to be labeled the attractive nuisance doctrine, was adopted by the Restatement of Torts in what has been called its "most effective single section." However, today in California, a recent decisions has reversed a century of development in the …
Haiti And The United States During The 1980s And 1990s: Refugees, Immigration, And Foreign Policy, Carlos Ortiz Miranda
Haiti And The United States During The 1980s And 1990s: Refugees, Immigration, And Foreign Policy, Carlos Ortiz Miranda
San Diego Law Review
This Article discusses various aspects of United States/Haitian relations during the 1980s and 1990s. It examines United States domestic immigration law and policy as applied to Haitian asylum-seekers who have reached the shores of the United States or who have been apprehended in the territorial sea. Additionally, this Article will examine foreign policy aimed at preventing Haitians from fleeing their homeland. It will discuss legislative policies of the United States Congress in light of the domestic and foreign policies pursued by the executive branch toward Haiti. Finally, it will conclude with certain observations and recommendations.
Educators Who Drive With No Hands: The Application Of Analytical Concepts Of Corporate Law In Certain Cases Of Educational Malpractice, Cherly L. Wade
Educators Who Drive With No Hands: The Application Of Analytical Concepts Of Corporate Law In Certain Cases Of Educational Malpractice, Cherly L. Wade
San Diego Law Review
This Article focuses on the problem of poorly educated children and how serious misconduct of some educators goes unpunished. The Author argues that civil liability should be imposed if the educator’s actions constitute gross negligence, such as where teachers allow a student to remain in an incorrect and harmful placement. Since the judiciary does not want to intervene in such cases, the Author examines types of decisions in the corporate context in which the court will intervene. The Article explains that the judiciary should apply a form of the business judgment rule and other corporate law principles to help alleviate …
Toward A Universal Rule For The Reasonable Disposition Of Surface Waters In California, Adam C. Lenain
Toward A Universal Rule For The Reasonable Disposition Of Surface Waters In California, Adam C. Lenain
San Diego Law Review
In designing a rule of reasonableness for the disposition of surface waters in California, the California Supreme Court has expressly considered the competing policies of equity and the promotion of development. The Author argues that another policy, overall economic efficiency, should be given equal consideration as the other policies because it promotes efficient use of resources and encourages the parties to come to solutions that lessen potential damage. This Comment analyzes the rules announced in Locklin v. City of Lafayette and Keys v. Romley. The Author questions the need for two different rules and proposes an integrated rule that addresses …
Reflections On O.J. And The Gas Chamber, J. Michael Echevarria
Reflections On O.J. And The Gas Chamber, J. Michael Echevarria
San Diego Law Review
This Article discusses the traditional justifications advanced in support of the death penalty and compares them with current empirical data. The justifications are then applied to the O.J. Simpson case. The Article examines the data and reasons for the incidence of error in convicting innocent defendants in capital cases. The type of representation available to O.J. Simpson is contrasted with the quality of representation accorded to most capital defendants. After comparing the empirical data with the ideological justifications for capital punishment, the Author concludes that capital punishment is not necessary.
Attorneys' Fees For Contractual Non-Signatories Under California Civil Code 1717: A Remedy In Search Of A Rationale, Robert S. Miller
Attorneys' Fees For Contractual Non-Signatories Under California Civil Code 1717: A Remedy In Search Of A Rationale, Robert S. Miller
San Diego Law Review
California courts have altered the American Rule for attorney’s fees in contract actions pursuant to California Civil Code Section 1717, which makes contractual fee shifting provisions reciprocal. The Author illustrates some of the problems with this section and how it has led to inequitable and unpredictable results. This Article argues that the statute should be revised in order to clarify that contractual fee-shifting applies only to signatories to the contract.
The Evolution Of The Capital Punishment Jurisprudence Of The United States Supreme Court And The Impact Of Tuilaepa V. California On That Evolution, David Hesseltine
The Evolution Of The Capital Punishment Jurisprudence Of The United States Supreme Court And The Impact Of Tuilaepa V. California On That Evolution, David Hesseltine
San Diego Law Review
This Comment discusses the evolution of the death penalty statute in Supreme Court decisions and the emergence of guided discretion statutes, in which the sentencing authority’s discretion to impose the death penalty is guided by aggravating and mitigating factors. The Comment analyzes the constitutional requirements placed upon the process used to sentence a defendant to death. The Author then analyzes the impact of Tuilaepa v. California on these requirements.
Judging Judgment: Assessing The Competence Of Mental Patients To Refuse Treatment, Grant H. Morris
Judging Judgment: Assessing The Competence Of Mental Patients To Refuse Treatment, Grant H. Morris
San Diego Law Review
This Article concerns the due process requirements in determining a mental patient’s competency to make a decision refusing medical treatment. The Author discusses the California decision imposing a judicial hearing requirement and San Diego Superior Court rules for implementing this decision. The Author, a law-trained decision maker in hearings to determine mental patients’ competence to refuse medication, compiled a case report after each of his hearings. He presents and analyzes the data on the competency cases he decided and emphasizes the factors which may have influence his decisions. The Author argues that competency hearings should be conducted by law-trained decision …
Domestic Partnership: Recognition And Responsibility, Raymond C. O'Brien
Domestic Partnership: Recognition And Responsibility, Raymond C. O'Brien
San Diego Law Review
time of this Article, partnerships had conferred benefits only: both business and political. This author argues that domestic partnerships should also include responsibilities of support, commitment and obligation within the economic partnership construct of emerging family law. The author concludes that this inclusion of responsibility in domestic partnerships by homosexual couples would lend credence to due process arguments of both equality and substance.
Substantive Due Process And Parental Corporal Punishment: Democracy And The Excluded Child, Mary Kate Kearney
Substantive Due Process And Parental Corporal Punishment: Democracy And The Excluded Child, Mary Kate Kearney
San Diego Law Review
This Article questions whether parents have a right to corporally punish their children, and if they do, how this right should be defined. The author argues that parents should not receive the heightened constitutional protection conferred by a fundamental right. She argues that the political process already adequately protects the interests of parents in disciplining their children. To the extent that the political process chooses to permit parents to administer reasonable corporal punishment, this Article proposes a five-part test that courts can use to determine whether an act of corporal punishment fits within that reasonableness standard. This test is more …
Environmental Claims In Bankruptcy: It's A Question Of Priorities, Deborah E. Parker
Environmental Claims In Bankruptcy: It's A Question Of Priorities, Deborah E. Parker
San Diego Law Review
This Comment evaluates the proper treatment of environmental claims in bankruptcy. It analyzes criteria that courts have established for characterizing environmental claims and for determining their priority in bankruptcy. It examines the relationships between the trustee's abandonment power, the priority of environmental claims, and the determination of when a claim arises. The author suggests criteria for characterizing environmental claims and for determining their priority in bankruptcy, thus resolving conflicting case law and resulting in a uniform and consistent application of the Bankruptcy Code, environmental law, and Supreme Court precedent.
Tomorrow's Law Schools: Globalization And Legal Education, Alberto Bernabe-Riefkohl
Tomorrow's Law Schools: Globalization And Legal Education, Alberto Bernabe-Riefkohl
San Diego Law Review
This Article focuses on the globalization of world political and economic structures, and how this affects the legal community. The globalization movement opens opportunities for the expansion of the market of legal services, as well as affecting the availability and accessibility of those services. This movement places legal educators in a crucial juncture. This article describes the effects of globalization on legal education, and proposes changes for legal educators in order to help meet the challenge of preparing lawyers for practice in this rapidly changing world.
People V. Hicks: Sentencing Laws And Sex Offenses - A Disingenuous Approach By The California Supreme Court, Michael A. Barmettler
People V. Hicks: Sentencing Laws And Sex Offenses - A Disingenuous Approach By The California Supreme Court, Michael A. Barmettler
San Diego Law Review
This Casenote questions the holding in People v. Hicks, a California Supreme Court decision in December 1993, which held that sex offenders are subject to multiple full-term consecutive sentences for both non-sex and sex offenses. The author argues that this decision exceeds the interpretive limits of the sex offender sentencing statutes in California. Based on a potentially applicable statutory prohibition regarding multiple punishments, this holding is criticized for abusing the court's interpretive authority. In addition, this decision is argued to open the door to a potential dramatic increase in sentences that the legislature never intended.
Of Tort Reform And Millionaire Muggers: Should An Obscure Equitable Doctrine Be Revived To Dent The Litigation Crisis?, Robert A. Prentice
Of Tort Reform And Millionaire Muggers: Should An Obscure Equitable Doctrine Be Revived To Dent The Litigation Crisis?, Robert A. Prentice
San Diego Law Review
Few stories have more power to outrage than that of Bernard McCummings, the "millionaire mugger" who was awarded $4.3 million by a jury after he was shot by a police officer allegedly using excessive force. This Article focuses on an equitable doctrine which could bar recovery in cases like that of McCummings and, potentially, in a much broader range of cases. The equitable doctrine, "ex turpi causa non oritur actio," means essentially that a person who has committed an illegal or immoral act may not bring a lawsuit. This Article examines how the doctrine is applied in selected western common …
Harris V. Forklift Systems, Inc. Victory Or Defeat?, Laura Hoffman Roppe
Harris V. Forklift Systems, Inc. Victory Or Defeat?, Laura Hoffman Roppe
San Diego Law Review
This Casenote analyzes the significance and potential effects of the decision in Harris v. Forklift Systems, Inc., a Supreme Court case decided in November 1993. This case promulgates a framework for analysis of "hostile environment" sexual harassment claims arising under Title VII of the Civil Rights Act of 1964. The author sets forth the historical backdrop of the case, as well as exploring and comparing the effect of the decision in general with the decision's effect in the Ninth Circuit in particular. The author concludes that the Harris case potentially reduces women's chances of winning sexual harassment claims in the …